Adoption

Adoption – Fundamental Principles

The leading judgment – or at least certainly the best place to start – is the judgment by the English Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146 – 17th September 2013. As the court states:

‘Before proceeding any further, it is necessary for us to go back to first principles and to emphasise a number of essential considerations that judges must always have in mind, and we emphasise this, at every stage of the process. Regrettably, the continuing lack of attention to what has been said in previous judgments necessitates our use of plain, even strong, language.’

Re B-S(Children) is certainly, in my experience, the most comprehensive analysis of the legal principles that should be (though sadly not always are) considered in any adoption case.

Background

The concept of adoption is not one known to the common law. Parental Rights, duties and liabilities were inalienable at common law and could not be transferred to another person. The procedure for such a transfer was introduced by statute and in Hong Kong is governed by the Adoption Ordinance (Cap 290). An adoption order may be made in favour of the mother or father, or a “relative” of the child who is 21 or over, or a person who is 25 or over (section 5 of Cap 290). “Relative” is defined in section 2 of Cap 290 to mean where the child is illegitimate: “…. the father of the infant and any person who would be a relative of the infant within the meaning of this definition if the infant were the legitimate child of his mother and father.”

Section 2 further defines “father” to mean the natural father when dealing with an illegitimate child, while “parent” in relation to such a child “means his mother, to the exclusion of his father”.

Under the present law of adoption, an adoption order will not made ‘… except with the consent of every person who is a parent or guardian of the infant or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant; or …. on the application of one of two spouses, except with the consent of the other spouse” (section 5(5) of Cap 290). Since “parent” in relation to an illegitimate child means the mother and not the father, the consent of the father of an illegitimate child is not required for adoption unless the father is liable to maintain the child under a court order (e.g. an affiliation order) or he has been made a guardian of the child. He could, however, attempt to “block” adoption proceedings by applying to the court for custody of his child under sections 10(1) and 21(1) of the Guardianship of Minors Ordinance (Cap13). By the same token, the father may still apply for custody of his illegitimate child after the mother has given a general consent to the child’s adoption.

In Hong Kong, section 5A of the Adoption Ordinance (Cap 290) gives the court power to dispense with any consent required by section 5(5)(a) and to make an order declaring a child free for adoption where the court is satisfied that consent should be dispensed with. Section 5A only applies to cases where the Director of Social Welfare is the legal guardian of the child and the application is made by the Director. In other cases, section 6 gives the court power to dispense with consent if it is satisfied that the child has been neglected or persistently ill-treated by his parent or guardian; that the person liable to contribute to the maintenance of the infant has persistently neglected or refused so to contribute; that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or that the consent ought, in all the circumstances of the case, to be dispensed with (section 6 of Cap 290).

The case concerns whether a child of two years of age should be permanently removed from her parents and placed for adoption. In that regard, whether the child was likely to suffer significant harm within the meaning of s.31(2)(a) of the Children Act 1989, and whether her permanent removal was a proportionate response to any such risk that she did face.

MF v LB of Brent & Ors [2013] EWHC 1838 (Fam) – Court grants opposed post-adoption contact order – Child’s ‘welfare …. requires the maintenance of a relationship with his maternal grandmother and sister’. Lord Justice Ryder has granted a contact order in favour of a grandmother when making an order for the adoption of a 7 year old boy.